Military Leave Policy (USERRA) (with Acknowledgment)
(OH)Military Leave Policy
Form Summary
This Ohio Military Leave Policy contains rules and regulations regarding military leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and Ohio state law. Employers may include this policy in an employee handbook or distribute it as a standalone document. It is intended for private employers. The policy’s language has been customized to comply with Ohio and federal law. As a result, the text of this form differs from the non-jurisdictional Military Leave Policy (USERRA) (with Acknowledgment) template. The drafting notes, alternate clause, and optional clause address issues under both Ohio and federal law.
For more information on Ohio's military leave laws, see Complying with Military Leave Laws in Ohio. For practice notes on military leaves under federal laws, see Military Leave (USERRA and FMLA).
SECTION 1. INTRODUCTION
This Military Leave Policy (the Policy) is designed to summarize [insert name of company]’s (the Company) rules and regulations regarding military leave under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and Ohio law and to educate employees about their rights and compliance obligations.
SECTION 2. ELIGIBILITY FOR LEAVE
This Policy applies to all employees who are members of, or enter, the Uniformed Services of the United States, including the National Guard and the Commissioned Corps of the Public Health Service, any state’s military forces, or the reserve components of these services. This Policy also extends to all members of the Ohio organized militia.
USERRA’s protections apply broadly to all employees serving in uniformed services including “all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.” 20 C.F.R. § 1002.6. Ohio law adopts USERRA and extends those rights and protections to members of the Ohio organized militia. Ohio Rev. Code Ann. § 5903.02.
Eligible employees may be entitled to time off from work for military service, which includes participating in active or inactive duty, training, preparing for service, traveling to the service location, and completing examinations to determine fitness for duty.
SECTION 3. NOTICE
An employee requesting a military leave of absence must provide written or verbal notice to the Company. The employee must provide notice as far in advance as is reasonable under the circumstances, but never less than 30 days in advance of the leave, unless such notice is not feasible or reasonable.
The employee should provide notice of military leave to his or her supervisor, department head, or the Human Resources department.
Drafting Note to Section 3, Paragraph 2
Modify this paragraph as necessary to reflect the organization and reporting structure of the employer. The employer may opt to state a specific individual to whom notice should be provided in order to decrease the potential for errors. You should instruct supervisors and department to immediately forward any request for a military leave of absence to the Human Resources department.
When an employee requests a military service leave, the employee is not required to state whether he or she intends to return to the Company upon completing service.
Drafting Note to Section 3, Paragraph 3
Employees taking military service leave may not waive their right to reemployment and do not need to inform their employers whether they intend to seek reemployment after completing service. 20 C.F.R. § 1002.88. Thus, the employer should avoid asking employees to decide whether or not they plan to return to the Company.
SECTION 4. BENEFITS
A. Healthcare Benefits
An eligible employee is entitled to continued health insurance benefits for the lesser of 24 months or the duration of the military leave. The Company shall pay the employer contribution amount for the first 30 days of leave. On the 31st day, the Company shall offer continuation of coverage under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) in accordance with applicable law.
Drafting Note to Section 4(A), Paragraph 1
Employers that provide employees health coverage must continue to offer health insurance coverage to employees taking military service leave for the lesser of 24 months and the duration of the leave. 20 C.F.R. § 1002.164. The employer may offer employer contributions for more than 30 days, but it must do so consistently for all similarly-situated employees to avoid disparate treatment claims.
B. Retirement Benefits
Upon reemployment, the employee’s retirement benefits will be treated as if the employee had worked throughout the military service leave, in accordance with applicable law and plan documents.
Drafting Note to Section 4(B), Paragraph 1
USERRA requires that the period of military duty be counted as covered service with the employer for eligibility, vesting, and benefit accrual purposes. 20 C.F.R. § 1002.259. Returning service members are treated as if they had been continuously employed regardless of the type of retirement plan the employer has adopted. Id. However, a person who is reemployed is entitled to accrued benefits resulting from employee contributions only to the extent that he or she actually makes the contributions to the plan.
SECTION 5. PAID TIME OFF
All military service leave shall be unpaid. If the employee has paid time off available, he or she may use paid time off during the military service leave, but is not required to do so.
Drafting Note to Section 5, Paragraph 1
Employers cannot require employees to use accrued time off during military service leave, but they must give employees the option. 20 C.F.R. § 1002.153.
Alternate Section 5, Paragraph 1: The Company will provide a voluntary, incentive-based payment in the amount of any difference between the employee’s regular wages and his or her military pay, conditioned on and payable within 60 days following the employee’s return to the Company. To receive this voluntary, incentive-based payment, the employee must provide documentation to the Human Resources department within 30 days of returning to the Company showing the wages the military paid the employee for each pay period.
Drafting Note to Alternate Section 5, Paragraph 1
Consider putting limits on supplemental payments. As these payments are not required by USERRA or Ohio state law, the employer may cap these payments, such as at three or six months. Without such a cap, the employer could face significant costs when high wage earners return from lengthy leaves of absence. Further, to incentivize the employee to remain loyal to the employer, consider deferring these payments and conditioning them on the employee returning to work for the employer for a certain period of time after completing service (e.g., one year). Refer to payments as voluntary incentive-based payments instead of wages so that employees easily recognize that they do not have a right to these payments as wages. Make sure that the payment arrangement is exempt from or complies with the rules for nonqualified deferred compensation under I.R.C. § 409A. For more information on nonqualified deferred compensation, see Understanding Nonqualified Deferred Compensation Arrangements and Internal Revenue Code Section 409A.
Optional Section 5, Paragraph 2: Vacation and sick leave benefits do not accrue during any unpaid period of military leave.
Drafting Note to Optional Section 5, Paragraph 2
Employers may opt to include this provision to explicitly preclude employees from accruing paid time off during military service leave.
SECTION 6. REEMPLOYMENT
An employee returning from a military service leave of absence is eligible for reemployment in accordance with the following guidelines and applicable law.
A. Employee Reporting Period
Except as provided under this Policy and applicable law, an employee who takes a military leave of absence for less than five years will be eligible for reemployment. To maintain reemployment rights, the employee must report for reemployment within the following time periods:
• Military service leave of 30 days or less. The employee must report to work on the first regularly-scheduled work day after the employee’s military service is complete, allowing sufficient time for return travel plus an additional eight hours. If it is impossible or unreasonable for the employee to report within this time period through no fault of his or her own, the employee must apply as soon as possible.
• Military service leave of 31 to 180 days. The employee must submit a written application for reemployment within 14 days following completion of his or her military service, allowing sufficient time for return travel plus an additional eight hours. If it is impossible or unreasonable for the employee to report within this time period through no fault of his or her own, the employee must apply as soon as possible.
• Military service leave of more than 180 days. The employee must submit a written application for reemployment within 90 days following completion of military service.
If the employee suffers a service-connected injury or illness, the Company will extend the applicable deadline for up to two additional years while the employee is hospitalized or convalescing.
Drafting Note to Section 6(A), Paragraph 5
These deadlines for employees reporting back to work are the minimum required by USERRA. An employer may choose to provide employees with additional time.
B. Employee Position
When an employee returns from military service, he or she will be entitled to a position as determined by the following guidelines and applicable law.
• Military service of 90 days or less. The Company will place any employee returning from a military service leave of 90 days or less into the position the employee would have had if his or her employment had not been interrupted, so long as the employee is qualified for the position.
The employer must put any employee returning from a leave of 90 days or less into the position the employee would have had if his or her employment had not been interrupted (the “escalator position”), if he or she is qualified for the position. 20 C.F.R. § 1002.196(a).
However, if the employee was on a leave of 90 days or less and is not qualified for the escalator position, the employer must attempt to place them in one of the following positions, in the following order:
• The pre-service position, if the employee is qualified
• The position nearest to the escalator position, if the employee is qualified
• The position nearest to the pre-service position, if the employee is qualified
20 C.F.R. § 1002.196(b), (c).
• Military service of more than 90 days. If an employee returns from a military service leave lasting 91 days or more, the Company will place him or her in the position the employee would have had if his or her employment had not been interrupted, or a position of like seniority, status, and pay, as long as the employee is qualified for the position.
Drafting Note to Section 6(B), Paragraph 3
If an employee returns from a military service leave lasting more than 90 days, the employer must place him or her in the position the employee would have had if his or her employment had not been interrupted (the “escalator position”) or a position of like seniority, status, and pay, if the employee is qualified for the position. 20 C.F.R. § 1002.197(a).
However, if the employee was on a leave for more than 90 days and is not qualified for an escalator position or similar position, the employer may place the employee in his or her pre-service position, or a position of like seniority, status, and pay. If the employee is not qualified for the pre-service or a comparable position, the employer must place him or her in another position that closely approximates the escalator position, if the employee is qualified. If the employee is not qualified, the employer must place him or her in a position that closely approximates the pre-service position, if the employee is qualified. 20 C.F.R. § 1002.197.
If an employee returns from leave but is not qualified for a given position, the Company will make reasonable efforts to help the employee become qualified. Such efforts may include employer-provided training or other actions that do not cause an undue hardship on the employer. In order to return to a position with the Company, the employee must be able to perform the essential functions of that position.
Drafting Note to Section 6(B), Paragraph 4
If an employee returns from leave but is not qualified for a given position, the employer must make “reasonable efforts” to help the employee become qualified that do not impose an undue hardship on the employer. 20 C.F.R. § 1002.196(a), (b), (c); 20 C.F.R. § 1002.197(a), (b), (c); 20 C.F.R. § 1002.198; 20 C.F.R. § 1002.5(i); 20 C.F.R. § 1002.5(n).
C. Exceptions
Employees who do not receive an honorable discharge are not eligible for reemployment.
Drafting Note to Section 6(C), Paragraph 1
The employer need not reinstate an employee who was not honorably discharged. 20 C.F.R. § 1002.32(a)(4). When an employee returns from a military service leave lasting more than 30 days, the employer may request a copy of service records showing that the employee received an honorable discharge from service. 20 C.F.R. § 1002.121(c).
Employees who are with the Company for a brief, non-recurrent period of time, and do not have a reasonable expectation that their employment will continue for a significant period of time are not entitled to reemployment or any related benefits.
Drafting Note to Section 6(C), Paragraph 2
The employer does not have to reinstate an employee when prior to his or her military service, the employee only worked a brief, non-recurrent period with the employer and had no reasonable expectation of continued employment. 20 C.F.R. § 1002.41.
SECTION 7. FOR CAUSE TERMINATION
When an employee returns from military service, the Company may terminate him or her in accordance with the following guidelines and applicable law.
• Military service leave for 31 to 180 days. If the employee’s leave lasted for 31 to 180 days, the Company will only terminate the employee for cause during the first 180 days of reemployment.
• Military service leave of 181 days or more. If the employee’s leave lasted for 181 days or more, the Company will only terminate the employee for cause during the first year of reemployment.
Drafting Note to Section 7, Paragraph 1
This section explains the limitations on disciplining employees returning from military service leave. While the employer is not specifically required to include this language in the employer’s policy, it is important to ensure supervisors and the Human Resources department are aware of these limitations on discipline.
The Company may terminate an employee “for cause” due to an employee’s misconduct, or any other legitimate, non-discriminatory reason.
Drafting Note to Section 7, Paragraph 4
To terminate an employee for cause, the employer must be able to show that the termination is due to the employee’s misconduct, that the discharge is reasonable, and that the employee had notice that the conduct would constitute cause for termination. The employer may also eliminate a protected employee’s position for a legitimate, non-discriminatory reason. 20 C.F.R. § 1002.248.
Nothing in this section prevents the Company from disciplining an employee whose conduct is in violation of Company policy.
SECTION 8. DISCRIMINATION AND RETALIATION PROHIBITED
The Company prohibits discrimination against an employee on the basis of military status, requesting a military service leave, or taking a military service leave. The Company will not deny employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation.
Additionally, the Company prohibits retaliation against a person either because of an action he or she takes to enforce or exercise any USERRA right or for assisting in an USERRA investigation.
Violation of this Section is a serious violation of Company policy. Anyone engaging in such conduct may be subject to discipline, up to and including termination of employment.
Drafting Note to Section 8, Paragraphs 1–3
Ohio law prohibits discrimination against an employee on the basis of military status. Ohio Rev. Code Ann. § 4112.02. USERRA expressly prohibits employers from discriminating or retaliating against an employee on the basis of military leave. 20 C.F.R. §§ 1002.18-1002.19. By educating management and involving the Human Resources department in all cases of military service leave, the employer minimizes the risk and merit of any discrimination or retaliation claims. For more information on USERRA’s discrimination and retaliation protections, see Navigating the Uniformed Services Employment and Reemployment Act (USERRA).
SECTION 9. LEAVE FOR FAMILY OF SERVICE MEMBER
The Company offers up to 10 days (or 80 hours) of unpaid leave to an employee who is the parent, spouse, or current or former legal custodian of a member of the uniformed services who has been called to active duty for a period of more than 30 days or a person who is injured or hospitalized while on active duty. This leave must be taken no more than two weeks prior to or one week after the deployment of the spouse, child, ward or former ward.
Drafting Note to Section 9, Paragraph 1
This policy is consistent with the minimum requirements of Ohio Rev. Code Ann. § 5906.02(A). Spousal military leave must only be offered if the employer has 50 or more employees. Ohio Rev. Code Ann. § 5906.01(C). Given the limited duration of the leave, the employer may wish to consider offering this benefit as paid leave.
To be eligible, the employee must have worked for the Company for 12 consecutive months and 1,250 hours in the 12-month period prior to the leave. The employee must also provide the Company with notice of his or her intent to take leave at least 14 days prior to taking leave related to deployment, or at least two days prior to taking leave related to the injury or hospitalization of a service member. The employee must provide the Company with documentation confirming eligibility. The Company shall not discriminate or retaliate against any employee requesting or taking leave pursuant to this or any section of the Policy.
Drafting Note to Section 9, Paragraph 2
These eligibility requirements are set forth by Ohio law. Ohio Rev. Code Ann. § 5906.02(A) and (C). While the employer may always increase employee protections, such as by allowing employees to provide seven days of notice, such benefits must be consistently applied and enforced. Ohio Rev. Code Ann. § 5906.03(F). Discrimination is expressly prohibited by Ohio Rev. Code Ann. § 5906.03(B).